Ruck v Horowhenua District Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeB P Dwyer,Environment Judge
Judgment Date02 Apr 2013
Neutral Citation[2013] NZEnvC 175
Docket NumberENV-2012-WLG-000113

Decision No: [2013] NZEnvC 175

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge B P Dwyer

Environment Commissioner J R Mills

Environment Commissioner D Kernohan

ENV-2012-WLG-000113

In the Matter of an application for declarations pursuant to s311 of the Resource Management Act 1991

Between
Aaron Ruck
First Applicant

and

Te Ngaio Nominees Ltd
Second Applicant
and
Horowhenua District Council
Section 274 party
Counsel:

C Mitchell for Aaron Ruck and Te Ngaio Nominees Ltd

S Curran for Horowhenua District Council

Application for declarations that a survey plan could be submitted to a territorial authority under s223(1) Resource Management Act 1991 (“RMA”) (approval of survey plan by territorial authority) within five years of the commencement date of the subdivision consent to which it related, notwithstanding that a survey plan had previously been submitted in respect of the same subdivision consent but not deposited within the time specified by s224(h) RMA (restrictions upon deposit of survey plan — no survey plan shall be deposited unless less than 3 years has elapsed since the territorial authority approved the plan under s223 RMA) — declaration that territorial authority had power under s37 RMA (power of waiver and extension of time limits) to extend the time specified by s224(h) RMA — applicants had obtained subdivision consents but failed to lodge survey plans within 3 years — whether the subdivision consents had lapsed as a result of failure to deposit the survey plans within three years of the date of Council approval under s223 PRA when s125(1) RMA (lapsing of consents) — whether it was possible to give effect to a subdivision consent on more than one occasion by submitting more than one survey plan for approval — whether the territorial authority had power under s37 RMA to extend the time specified by s224(h) RMA.

Held: The correct approach to interpretation of the provisions was to interpret the words in accordance with their natural and ordinary meaning unless that natural and ordinary meaning did not give effect to the purpose of the legislation. The natural and ordinary meaning of the words contained in the relevant provisions of s125 RMA were:

  • • If no lapse date was specified in a resource consent (including a subdivision consent) then the consent lapsed five years after the date of its commencement;

  • • However a resource consent did not lapse under s125(1) RMA (resource consent lapsed 5 years after the date of commencement of the consent if no date was specified) if, before it lapsed, it had been given effect to;

  • • A subdivision consent was given effect to when a survey plan was submitted to a Council under s223 RMA (duration of consent);

  • • A subdivision consent which had been given effect to by submission of a survey plan under s223 RMA lapsed if that survey plan was not deposited in accordance with s224 RMA (i.e. within three years of its approval).

The natural and ordinary meaning of the words contained in s125 RMA created an exception to the operation of s125(1) RMA so that once a subdivision consent had been given effect to by the submission of a survey plan for approval under s223 RMA, the lapse period for that consent became the three year period provided for in s125(2) (subdivision consent given effect to when a survey plan in submitted under s223, but shall lapse if not deposited in accordance with s224) RMA and s224(h) RMA. However it was questionable whether the provisions were directed at the situation applicable in this case, where the lapse period provided for in s125(1) RMA had not expired and it might be possible to submit a further survey plan for approval under s223 RMA.

Section 125 RMA had been inserted by the Resource Management Amendment Act 2003. Parliament's intention when the extending the (then) two year lapse period, was that consent holders would be allowed a generous period of time before consents lapsed.

The subdivision process required that consent was first obtained under Part 6 (with five years to give effect to the consent). The remaining steps were process steps under Part 10. The purpose of s224(h) was to specify the time within which the part 10 process had to be completed. Interpreting s125(2) and s224(h) in the manner contended by the Council conflated the Part 6 and Part 10 processes.

A consequence of interpreting the provisions as submitted by the Council was to penalise consent holders who acted promptly by submitting s223 plans shortly after consent was obtained. They lost the benefit of the five year lapse period, which would be a perverse outcome. There was no obvious purpose of principle in the RMA that would be advanced by interpreting s124 RMA in the manner contended by the Council.

It was possible to submit survey plans for approval by a territorial authority under s223 RMA on more than one occasion. The three year lapse period provided for in s224(h) RMA had to apply to each specific survey plan approved pursuant to s223 RMA. If another survey plan was presented for approval with a later approval date under s223 RMA then the three year lapse period would run from that later date insofar as that particular plan was concerned.

The correct manner in which to interpret s125(2) RMA was that the provision concerning the lapsing of consent applied in respect of any specific plan submitted by a subdivider pursuant to s223 RMA. Any given survey plan approved pursuant to s223 RMA had to be deposited within the three year window from date of approval of that survey plan, failing which the subdivision consent lapsed in respect of that particular plan, without removing the ability for a subdivider to submit further survey plans during the five year period provided by s125(1) RMA.

Even if the Council had the power to extend the time limit contained in s224(h) RMA, the Court had no jurisdiction to direct the Council to exercise that power. It was a discretionary power vested in the Council by s37 RMA (power of waiver and to extend time limits) subject to conditions and limits set out in s37A RMA (requirements for waivers and extensions). The RMA did not contain any procedures enabling an application to a consent authority to exercise the power and or was there any right of objection of appeal in this respect.

Once a territorial authority had issued a subdivision consent under Part 6 RMA (resource consents), its functions in completing the subdivision process under Part 10 RMA (subdivisions) were limited to:

  • • approving a survey plan pursuant to s223, which it is obliged to do within 10 working days of receipt as long as the conditions contained in s223(2) RMA had been met; and

  • • issuing a certificate pursuant to s224(c) RMA that it had approved a survey plan under s223 RMA. Section 37 RMA was not intended to give consent or territorial authorities some general overarching power to extend time limits applying to functions under RMA in which they had no part.

A survey plan could be submitted to a territorial authority under s223(1) RMA within 5 years of the commencement date of of the subdivision consent to which it related notwithstanding that a survey plan had previously been submitted in respect of the same subdivision consent but not deposited within the time specified by s224(11) RMA.

DECISION ON APPLICATION FOR DECLARATIONS

Decision issued: 06 AUG 2013

A: Application granted in part.

B: No reservation of costs.

Introduction
1

These declaration proceedings consider the interpretation of the provisions of ss125, 223 and 224 Resource Management Act 1991 (RMA) which relate to the lapse of resource consents (subdivision consents particularly in this case) and the process for deposit of subdivision plans.

2

Aaron Ruck (Mr Ruck) and Te Ngaio Nominees Ltd (Te Ngaio) (jointly the Applicants) seek declarations in the following terms:

Declarations Sought

4. The applicants seek the following declarations:

  • a) A survey plan may be submitted to a territorial authority under section 223(1) within five years of the commencement date of the subdivision consent to which it relates, notwithstanding that a survey plan has previously been submitted in respect of the same subdivision consent but not deposited within the time specified by section 224(h).

  • b) A territorial authority has power under section 37 to extend the time specified by section 224(h).

3

Both of the Applicants are persons who have obtained subdivision consents from Horowhenua District Council (the Council). In each case, the Applicants have had survey plans in accordance with their consents approved by the Council pursuant to s223. An approval under s223 is confirmation by a territorial authority that a survey plan accords with the terms and conditions of a resource consent which that territorial authority has previously granted. It is a requirement of s224(h) that subdivides have a period of three years from date of approval of a survey plan under s223 within which to deposit that plan (i.e complete the subdivision), failing which the consent lapses. In neither case did the Applicants deposit their survey plans within that period.

4

The matter at issue between the Applicants and the Council is whether or not their respective subdivision consents have lapsed as a result of failure to deposit the survey plans within three years of the date of Council approval under s223, when s125(1) provides that resource consents lapse five years after their commencement and that period has not yet expired for these subdivision consents.

5

We will return to these statutory provisions in more detail later in this decision. Before doing so we briefly set out the relevant background facts in respect of each of the subdivision consents.

Te Ngaio Subdivision
6

On 20 August 2008, the Council granted resource consent to Te Ngaio allowing the subdivision of one existing allotment of land into eight lots (plus road to vest). It was common ground between Te Ngaio and the...

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